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Saturday, 14 October 2017

Whether doctrine of lis pendens is applicable to muslim law?

A preliminary objection has been raised on behalf of the respondents as tovery applicability of doctrine of lis pendens to Mohammedan law based uponprovisions contained in section 2 of T.P. Act. Section 2 is extracted hereunder :“2. Repeal of Acts.--Saving of certain enactments, incidents,rights, liabilities, etc. --- In the territories to which this Act extendsfor the time being the enactments specified in the Schedule heretoannexed shall be repealed to the extent therein mentioned. But nothingherein contained shall be deemed to affect---(a) the provisions of any enactment not hereby expresslyrepealed;(b) any terms or incidents of any contract or constitution ofproperty which are consistent with the provisions of this Act,and are allowed by the law for the time being in force;(c) any right or liability arising out of a legal relationconstituted before this Act comes into force, or any relief inrespect of any such right or liability; or(d) save as provided by section 57 and Chapter IV of this Act,any transfer by operation of law or by, or in execution of, adecree or order of a Court of competent jurisdiction,and nothing in the second Chapter of this Act shall be deemed toaffect any rule of Muhammadan law.”No doubt about it that section 2 of T.P. Act protects rule of Mohammedanlaw by excluding the provisions of Chapter II containing sections 5 to 53A thereof.In our opinion, exclusion is conditional upon existence of rule of Mohammedanlaw in that regard, that is to say if principle/rule of Mohammedan law provides asto transfers lis pendens, the same would prevail and nothing in section 52 of T.P.Act shall be deemed to affect any such rule. However, we have not been shown anysuch rule of Mohammedan law containing provision as to lis pendens and thus, inthe absence whereof the provisions of section 52 T.P. Act would be attracted. Thesubmission as to non-applicability of section 52 of T.P. Act to Mohammedan lawis hereby rejected. {Para 24 }ReportableIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NOS.4731-4732 OF 2010T. Ravi & Anr.Vs. B. Chinna Narasimha & Ors. etc.With[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of 2010,]Citation:(2017) 7 SCC 342Read full judgment here: Click here